[Federal Register Volume 85, Number 30 (Thursday, February 13, 2020)]
[Proposed Rules]
[Pages 8242-8244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02425]



[[Page 8242]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 804, 805, 849, and 852

RIN 2900-AQ77


VA Acquisition Regulation: Administrative Matters; Publicizing 
Contract Actions; and Termination of Contracts

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
and update its VA Acquisition Regulation (VAAR) in phased increments to 
revise or remove any policy superseded by changes in the Federal 
Acquisition Regulation (FAR), to remove procedural guidance internal to 
VA into the VAAM, and to incorporate any new agency specific 
regulations or policies. These changes seek to streamline and align the 
VAAR with the FAR and remove outdated and duplicative requirements and 
reduce burden on contractors. The VAAM incorporates portions of the 
removed VAAR as well as other internal agency acquisition policy. VA 
will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are 
rewritten, will publish them in the Federal Register. VA will combine 
related topics, as appropriate. This rulemaking revises VAAR coverage 
concerning Administrative Matters, Publicizing Contract Actions, and 
Termination of Contracts, as well as an affected part concerning 
Solicitation Provisions and Contract Clauses.

DATES: Comments must be received on or before April 13, 2020 to be 
considered in the formulation of the final rule.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Office of 
Regulation Policy and Management (00REG), Department of Veterans 
Affairs, 810 Vermont Avenue NW, Room 1064, Washington, DC 20420; or by 
fax to (202) 273-9026. Comments should indicate that they are submitted 
in response to ``RIN 2900-AQ77--VA Acquisition Regulation: 
Administrative Matters; Publicizing Contract Actions; and Termination 
of Contracts.'' Copies of comments received will be available for 
public inspection in the Office of Regulation Policy and Management, 
Room 1064, between the hours of 8:00 a.m. and 4:30 p.m., Monday through 
Friday (except holidays). Please call (202) 461-4902 for an 
appointment. (This is not a toll-free number.) In addition, during the 
comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Rafael N. Taylor, Senior 
Procurement Analyst, Procurement Policy and Warrant Management 
Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-
2787. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: 

Background

    This action is being taken under the authority of the Office of 
Federal Procurement Policy (OFPP) Act which provides the authority for 
an agency head to issue agency acquisition regulations that implement 
or supplement the FAR. This authority ensures that Government 
procurements are handled fairly and consistently, that the Government 
receives overall best value, and that the Government and contractors 
both operate under a known set of rules.
    The proposed rule would update the VAAR to current FAR titles, 
requirements, and definitions; it would correct inconsistencies and 
remove redundancies and duplicate material already covered by the FAR; 
it would also delete outdated material or information and appropriately 
renumber VAAR text, clauses, and provisions where required to comport 
with FAR format, numbering and arrangement. All amendments, revisions, 
and removals have been reviewed and concurred with by an Integrated 
Product Team of agency stakeholders.
    The VAAR uses the regulatory structure and arrangement of the FAR 
and headings and subject areas are broken up consistent with the FAR 
content. The VAAR is divided into subchapters, parts (each of which 
covers a separate aspect of acquisition), subparts, sections, and 
paragraphs.
    The Office of Federal Procurement Policy Act, as codified in 41 
U.S.C. 1707, provides the authority for the Federal Acquisition 
Regulation and for the issuance of agency acquisition regulations 
consistent with the FAR.
    When Federal agencies acquire supplies and services using 
appropriated funds, the purchase is governed by the FAR, set forth at 
title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 
53, and the agency regulations that implement and supplement the FAR. 
The VAAR is set forth at title 48 CFR, chapter 8, parts 801 to 873.

Discussion and Analysis

    The VA proposes to make the following changes to the VAAR in this 
phase of its revision and streamlining initiative. For procedural 
guidance cited below that is proposed to be deleted from the VAAR, each 
section cited for removal has been considered for inclusion in VA's 
internal agency operating procedures in accordance with FAR 
1.301(a)(2). Similarly, delegations of authority that are removed from 
the VAAR will be included in the VA Acquisition Manual (VAAM) as 
internal agency guidance. The VAAM is being created in parallel with 
these revisions to the VAAR and is not subject to the rulemaking 
process as they are internal VA procedures and guidance. The VAAM will 
not be finalized until corresponding VAAR parts are finalized, and 
therefore the VAAM is not yet available on line.

VAAR Part 804--Administrative Matters

    Under part 804, Administrative Matters, we propose to add the 
authority citation for 41 U.S.C. 1702 which addresses the acquisition 
planning and management responsibilities of Chief Acquisition Officers 
and Senior Procurement Executives, to include implementation of unique 
procurement policies, regulations and standards of the executive 
agency. We propose to revise the authority citation of 40 U.S.C. 121 to 
remove the reference to paragraph (d), as paragraph (c) which will be 
retained comports with FAR and VAAR standard usage and reference to 
paragraph (d) is unnecessary. We propose to remove the authority 
citation of 38 U.S.C. 8127 and 8128 as the section requiring the 
citation, 804.1102, Vendor Information Pages (VIP) Database, is being 
moved to part 819, Small Business Programs. The authorities cited for 
this part are 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
    We propose to remove subpart 804.1, Contract Execution, and section 
804.101, Contracting officer's signature, because it duplicates 
coverage in the FAR. This proposed rule would also remove section 
804.1102, Vendor Information Pages (VIP) Database, as this information 
is being moved to part 819, Small Business Programs.
    We propose to add subpart 804.13, Personal Identity Verification, 
and section 804.1303, Contract clause, to prescribe clause 852.204-70, 
Personal Identity Verification of Contractor Personnel, which requires 
personal identity verification of all employees performing under a 
contract when

[[Page 8243]]

frequent and continuing access to VA facilities or information systems 
is required.

VAAR Part 805--Publicizing Contract Actions

    We propose to remove and reserve part 805. Under this part, we 
propose to remove section 805.202, Exceptions, as duplicative of FAR 
coverage at 6.302-5. This proposed rule would also remove section 
805.205, Special situations, since it duplicates coverage at FAR 
5.101(b) and 5.502(a). Finally, this proposed rule would remove section 
805.207, Preparation and transmittal of synopses, as the guidance it 
provides is outdated and does not add value.

VAAR Part 849--Termination of Contracts

    Under part 849, Termination of Contracts, we propose to remove 41 
U.S.C. 1121(c)(3), which addresses the authority of the Administrator 
of OFPP to prescribe Government-wide policies to be implemented in the 
FAR. The authorities cited for this part are 40 U.S.C. 121(c); 41 
U.S.C. 1702; and 48 CFR 1.301-1.304.
    We propose to remove the entire subpart 849.1, General Principles, 
as it contains internal guidance. Specifically, sections 849.101, 
Authorities and responsibilities, and 849.106, Fraud or other criminal 
conduct, are proposed for removal as they contain internal procedures 
which will be addressed in VAAM. We propose to remove sections 849.811, 
Review of proposed settlements, 849.111-70, Required review, and 
849.111-71, Submission of information, as they include outdated 
information and internal procedures which will be updated and addressed 
in the VAAM.
    This proposed rule would add subpart 849.5, Contract Termination 
Clauses, and section 849.504-70, Termination of mortuary services, to 
prescribe clause 852.249-70, Termination for Default--Supplement for 
Mortuary Services, in all solicitations and contracts for mortuary 
services containing the FAR clause 52.249-8, Default (Fixed-Price 
Supply and Service).

VAAR Part 852--Solicitation Provisions and Contract Clauses

    We propose to add clause 852.204-70, Personal Identity Verification 
of Contractor Personnel, to require contractor compliance with 
Department of Veterans Affairs policy for personal identity 
verification of all employees performing under a contract that requires 
frequent and continuing access to VA facilities or information systems.
    We propose to add clause 852.249-70, Termination for Default--
Supplement for Mortuary Services, which supplements FAR clause 52.249-
8, Default (Fixed-Price Supply and Service), to identify specific 
circumstances in which the Government may terminate for default in 
contracts for mortuary services.

Executive Orders 12866, 13563 and 13771

    Executive Orders (EOs) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). E.O. 13563 (Improving Regulation and Regulatory Review) 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. The 
Office of Information and Regulatory Affairs has determined that this 
rule is not a significant regulatory action under Executive Order 
12866.
    VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''
    This proposed rule is not expected to be an E.O. 13771 regulatory 
action because this proposed rule is not significant under E.O. 12866.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (5 
U.S.C. 601-612). This rulemaking does not change VA's policy regarding 
small businesses, does not have an economic impact to individual 
businesses, and there are no increased or decreased costs to small 
business entities. On this basis, the proposed rule would not have an 
economic impact on a substantial number of small entities as they are 
defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, 
pursuant to 5 U.S.C. 605(b), the initial and final regulatory 
flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal Governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal Governments or on the private 
sector.

List of Subjects

48 CFR Parts 804, 805, and 849

    Government procurement.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Pamela 
Powers, Chief of Staff, Department of Veterans Affairs, approved this 
document on January 28, 2020, for publication.

Consuela Benjamin,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 48 
CFR parts 804, 805, 849, and 852 as follows:

PART 804--ADMINISTRATIVE MATTERS

0
1. The authority citation for part 804 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301 
through 1.304.

Subpart 804.1 [Removed and Reserved]

0
2. Subpart 804.1, consisting of sections 804.101 and 804.1102, is 
removed and reserved.
0
 3. Subpart 804.13 is added to read as follows:

[[Page 8244]]

Subpart 804.13--Personal Identity Verification


804.1303   Contract clause.

    The contracting officer shall insert the clause at 852.204-70, 
Personal Identity Verification of Contractor Personnel, in 
solicitations and contracts that require contractor employees to have 
routine access to a VA facility or to VA information systems. This 
clause is used in conjunction with FAR clause 52.204-9, Personal 
Identity Verification of Contractor Personnel.

PART 805 [Removed and Reserved]

0
4. Part 805, consisting of sections 805.202, 805.205, and 805.207, is 
removed and reserved under the authority of 40 U.S.C. 121(c) and 48 CFR 
1.301 through 1.304.

PART 849--TERMINATION OF CONTRACTS

0
5. The authority citation for part 849 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301 
through 1.304.

Subpart 849.1 [Removed and Reserved]

0
6. Subpart 849.1, consisting of sections 849.101, 849.106, 849.111, 
849.111-70, and 849.111-71, is removed and reserved.
0
7. Subpart 849.5 is revised to read as follows:

Subpart 849.5--Contract Termination Clauses


849.504-70  Termination of mortuary services.

    Use the clause at 852.249-70, Termination for Default--Supplement 
for Mortuary Services, in all solicitations and contracts for mortuary 
services containing the FAR clause 52.249-8, Default (Fixed-Price 
Supply and Service).

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
8. The authority citation for part 852 continues to read as follows:

    Authority:  Pub. L. 101-647; 20 U.S.C. 7181-7183; 38 U.S.C. 
8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 
U.S.C. 1303; 41 U.S.C 1702; and 48 CFR 1.301 through 1.304.

Subpart 852.2--Text of Provisions and Clauses

0
 9. Section 852.204-70 is added to read as follows:


852.204-70  Personal Identity Verification of Contractor Personnel.

    As prescribed in 804.1303, insert the following clause:

Personal Identity Verification of Contractor Personnel (Date)

    (a) The Contractor shall comply with current Department of 
Veterans Affairs policy for personal identity verification of all 
employees performing under this contract when frequent and 
continuing access to VA facilities or information systems is 
required.
    (b) The Contractor shall insert this clause in all subcontracts 
when the subcontractor's employees will require frequent and 
continuing access to VA facilities or information systems.


(End of clause)
0
10. Section 852.249-70 is revised to read as follows:


852.249-70  Termination for Default--Supplement for Mortuary Services.

    As prescribed in 849.504-70, insert the following clause:

Termination for Default--Supplement for Mortuary Services (Date)

    The FAR clause entitled Default (Fixed-Price Supply and 
Service), at 52.249-8, is supplemented as follows:
    The Contracting Officer may terminate this contract for default 
by written notice without the ten day notice required by paragraph 
(a)(2) of the Default clause if--
    (a) The Contractor, through circumstances reasonably within its 
control or that of its employees, performs any act under or in 
connection with this contract, or fails in the performance of any 
service under this contract and the act or failures may reasonably 
be considered to reflect discredit upon the Department of Veteran 
Affairs in fulfilling its responsibility for proper care of remains;
    (b) The Contractor, or its employees, solicits relatives or 
friends of the deceased to purchase supplies or services not under 
this contract. (The Contractor may furnish supplies or arrange for 
services not under this contract, only if representatives of the 
deceased voluntarily request, select, and pay for them.);
    (c) The services or any part of the services are performed by 
anyone other than the Contractor or the Contractor's employees 
without the written authorization of the Contracting Officer;
    (d) The Contractor refuses to perform the services required for 
any particular remains; or
    (e) The Contractor mentions or otherwise uses this contract in 
its advertising in any way.


(End of clause)

[FR Doc. 2020-02425 Filed 2-12-20; 8:45 am]
 BILLING CODE 8320-01-P